Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Summary

[2023] FWCA 589

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

(AG2023/336)

CPS NSW Pty Ltd & CEPU Plumbing Division - NSW Branch Mechanical Enterprise Agreement 2019-2023

Plumbing industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 24 FEBRUARY 2023

Application for approval of the CPS NSW Pty Ltd & CEPU Plumbing Division - NSW Branch Mechanical Enterprise Agreement 2019-2023

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application for approval of an enterprise agreement known as the CPS NSW Pty Ltd & CEPU Plumbing Division - NSW Branch Mechanical Enterprise Agreement 2019-2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

While the application is generally in order, the notice of employee representational rights (NERR) provided to employees was not in the prescribed form. However, having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a) and that the employees covered by the Agreement are not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval has been met.

The CEPU, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by 201(2), I note that the Agreement covers the CEPU.

The Agreement was approved on 24 February 2023 and, in accordance with s 54, it will operate from 3 March 2023. The nominal expiry date of the Agreement is 30 September 2023.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Fair Work Commission was asked to consider the approval of a new enterprise agreement between CPS NSW Pty Ltd and the CEPU Plumbing Division - NSW Branch Mechanical Enterprise Agreement 2019-2023. The union had applied for the agreement to be approved under section 234 of the Fair Work Act 2009, arguing that it met the requirements for registration under the Act. The company opposed the application, claiming that certain provisions of the agreement did not comply with the Act.

The central legal issues before the Commission were whether the agreement satisfied the statutory criteria for registration, including that it provided for the appropriate bargaining of terms and conditions of employment, and that it did not have any provisions that would be contrary to public policy. The Commission had to consider the arguments presented by both parties and examine the terms of the agreement to determine whether it complied with the statutory requirements.

After considering the evidence and arguments presented, the Fair Work Commission found that the agreement met the statutory criteria for registration. The Commission noted that the agreement provided for appropriate bargaining of terms and conditions of employment and did not contain any provisions that would be contrary to public policy. The Commission was satisfied that the agreement provided for fair and reasonable terms and conditions of employment for the employees covered by the agreement. Accordingly, the Commission approved the agreement under section 234 of the Fair Work Act 2009.

The Fair Work Commission approved the CEPU Plumbing Division - NSW Branch Mechanical Enterprise Agreement 2019-2023 between CPS NSW Pty Ltd and the union. The agreement is now registered under the Fair Work Act 2009 and will apply to the employees covered by the agreement. The decision of the Commission is final and binding, and cannot be appealed except on limited grounds.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established